Chikomba Rural District Council v Lawrence Mangwiroti and Munyaradzi Dangarembizi N.O.

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/253/23
HELD AT HARARE 9TH JUNE 2023 AND
CASE NO LC/H/178/23
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 9TH JUNE 2023 AND 31 AUGUST 2023

In the matter between

CHIKOMBA RURAL DISRTICT COUNCIL

And

LAWRENCE MANGWIROTO

And

JUDGMENT NO LC/H/253/23 CASE NO LC/H/178/23

APPLICANT

1ST RESPONDENT

MUNYARADZI DANGAREMBIZI N.O.	2ND RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

For the Applicant	: Mr H. Mutasa(Legal Practitioner) For the 1st Respondent : Mr T. Mudzuri (Legal Practitioner) For the 2nd Respondent :No Appearance

MAKAMURE J.

This is an application for review.

The applicant raises the following ground for review.

‘ The proceedings of the tribunal a quo were irregular in that the 2nd Respondent based his determination on a Replication which had been filed by the First Respondent yet the Applicant had not been given an opportunity to consider and make representations in respect of that Replication.’

The applicant prays that the determination of the Designated Agent (DA) be set aside.

Proceedings Before the DA

The brief facts of this matter as shown in the founding affidavit deposed to on behalf of the applicant are as follows.

The 1st respondent is a former employee of the applicant. He was dismissed from the applicant’s employ following disciplinary proceedings. He was aggrieved by the dismissal

.He alleged that he had been unfairly dismissed and that the applicant had made some underpayments to him. The 1st respondent appealed against the dismissal to the ‘Exemption Committee’ and it ordered that he be reinstated without loss of salaries and benefits. The applicant on the other hand appealed to this Court against the decision to reinstate the 1st respondent. The appeal is still to be heard. Meanwhile the 1st respondent approached a designated agent with a dispute over the alleged underpayments.

On 23 January 2023, the designated agent, 2nd respondent , advised parties as follows:

‘RE : LAWRENCE MANGWIROTO VS CHIKOMBA RDC

The above has above matter been referred to the NEC for redressing. Parties are invited to file written submissions as follows:

Claimant’s Statement of Claim as attached;

Respondent’s Statement of Response on or before 3 February 2023

Claimant’s Statement of Replication on or before 8 February 2023

Written submissions must be served on the other party before being submitted to the NEC. The Designated Agent may proceed to make a determination on the record. An oral hearing will immediately  be set down upon requests by either party.

The matter will be heard before M.Dangarembizi

Should you fail to file written submissions and to attend the hearing, the matter will proceed and a determination will be made without your input, to the possible detriment of your interests.

… (Signed)’

( My underlining).

Parties submitted the documents in terms of the deadlines set by the Designated Agent. However, after the Claimant’s Statement of Replication there was no reaction from the respondent (now applicant). The Designated Agent had indicated as shown in his instructions to the parties above, that either party was free to ask for an oral hearing should that party be so inclined. There was no request for an oral hearing. As a result, the DA proceeded to make his determination on the basis of the documents submitted by the parties. The determination

was handed down to the parties. That is when the present applicant ( respondent a quo ) realized that the determination was influenced by a replication which it had not seen. The determination is to the following effect:

The Respondent was underpaid by the applicant and therefore the applicant should pay the respondent ‘ the total of RTGS 1 650 692.94 and USD22 208.05 being salaries and benefits for the period January 2019 to January 2023.’ 2) The applicant has appealed the decision to the Labour Court, and the appeal is still to be heard.

However, s92E(3) of the Labour Act Chapter 28:01(The Act) provides that an appeal to the Labour Court does not suspend the operation of a determination. Consequently, the designated agent opined, and correctly so, that the respondent was within his rights to have the determination enforced while the appeal against the same decision is still pending.

Before this Court

The present application is based on the fact that the applicant was not given a chance to respond to the respondent’s replication, and that had it seen the replication, it would have requested for an oral hearing before the DA had made their final determination.

Mr Mutasa who appeared for the applicant submitted both in the heads of argument and in his oral address before this Court that the Designated Agent made their determination on the basis of the respondent’s replication which the applicant did not have sight of. This, Mr Mutasa submitted, was detrimental to the applicant’s case. Had the applicant received the replication they would have requested for an oral hearing. The issue which seems to have affected the parties is communication. The DA did not specify the mode of serving documents. It appears that documents had been served to the applicant physically so the expectation was that the replication would also be served physically. However, the replication was served by email. That email was seen well after the determination had been made. It was argued that under the circumstances, the audi rule was violated. For this reason, the submission on behalf of the applicant was that the proceedings by the Designated Agent ought to be set aside. Some of the authorities relied on by the applicant are Hwange Colliery Co. Ltd v Makute & Anor SC46/206; Sable Chemical Industries Ltd v David Peter Easterbrook SC 18/10

The 1st   respondent vehemently opposed the application. Mr Mudzuri who appeared on behalf of the 1st respondent pointed out that the Designated Agent did not specify the mode of

service of the documents. The 1st respondent sent documents by email. There was no adverse comment about this method from the DA. In support of this argument the Court was referred to the case of Attorney-General v Leopold Mudisi and Others SC48/15. It was Mr Mudzuri’s argument that had the DA found this method to be unacceptable they would have said so. Mr Mudzuri further argued that the DA sent notices through email. It was argued further that the applicant ought to have checked their email. Mr Mudzuri argued that ‘ the law does not help the sluggard’. It was therefore up to the applicant’s legal practitioners to check or follow up with the 2nd respondent whether or not the respondent had filed a replication . In his further arguments Mr Mudzuri attacked the integrity of the applicant’s legal practitioners suggesting that they were dishonest. Mr Mudzuri also criticized the applicant’s founding affidavit arguing that it was vague. The following are some of the case authorities relied upon by the 1st respondent: Ndebele v Ncube 1991 (1) ZLR 288; Muzuva v United Bottlers 1994(1) ZLR 217 (S).

In response Mr Mutasa argued that the respondent suggested dishonest conduct on the part of the 1st respondent’s legal practitioners but there was no proof of such conduct. Mr Mutasa submitted that the authorities relied on by the respondent were irrelevant under the circumstances. Mr Mutasa reiterated that the matter that was before the DA was determined in violation of the audi rule. This , Mr Mutasa argued was unjust and inequitable .The Court was urged to grant the application considering that the Labour Court is a special court which is meant to dispense justice as was held in the case of Edmore Mapondera and 55 Others SC 81/22.

Analysis

After considering the papers and argument , it is common cause that the DA made a

determination without the response of the applicant on the respondent’s replication. While it is important for the applicant’s legal practitioners to have made a follow up on the matter, I think it is not unreasonable for a litigant to expect notification in a manner that has been made before. Further the applicant’s legal practitioners have been honest with the Court and disclosed that they saw the replication later, but by then a decision had already been made. As correctly submitted on behalf of the applicant, this Court is a special court which is meant to dispense justice between man and man. Further still, it is undesirable for labour matters to be decided on the basis of technicalities. Dalny Mine v Banda 1999(1) ZLR 220 (S). This is however not to encourage parties to be lax when dealing with labour matters. The usual

diligence is expected but where an oversight has occurred, and the litigant is honest, the court can exercise its discretion in favour of such a litigant. A litigant’s case should not be ruined because of technicalities especially where it is clear that they were not heard in full by the lower tribunal. This would violate both the audi rule and the need to ensure the equitable resolution of disputes. In Hwange Colliery Company Limited v 1)Tendai Makute 2) Deputy Sheriff, Hwange SC64/2016 ,the Supreme Court held that ‘every person must be afforded an opportunity to be heard…’ . In the case of Attorney General v Leopold Mudisi and Others SC48/15 the Supreme Court stated that:

‘One of the fundamental precepts of natural justice, encapsulated in the maxim audi alteram partem, is the right of every person to be heard or afforded an opportunity to make representations before any decision is taken that might impinge upon his rights, interests or legitimate expectations. This precept of the common law forms part of the larger duty imposed upon every administrative authority to act legally, rationally and procedurally. See the Telecel case (supra) at pp. 20-22 of the cyclostyled judgment.

That common law duty is now codified in s 3(1)(a) of the Administrative Justice Act [Chapter 10:28] as the duty to “act lawfully, reasonably and in a fair manner”. The obligation to act in a fair manner is further expanded in s 3(2) of the Act to require

the giving of “adequate notice of the nature and purpose of the proposed action” and “a reasonable opportunity to make adequate representations” as well as “adequate notice of any right of review or appeal where applicable”.

On the other hand, it is correct to say that in terms of s92E(3) of the Act, an appeal does not suspend the operation of an order which is extant. However, this should not be viewed in isolation. The totality of the surrounding circumstances must be considered. Further , each case must be determined according to its own merits. Some of the issues which must be guarded against include the piecemeal resolution of disputes and multiplicity of proceedings. If the position adopted by the respondent were to be followed to its logical end, this would mean that the determination by the DA is registered to ensure that it is enforced. Meanwhile should the pending appeal succeed, then the earlier registered order will have to be reversed. This means parties will continue to go back forth without resolving the dispute between them. This can, and should be avoided in the interests of both finality to litigation and equity. See Ndebele v Ncube 1992(1) ZLR 288.

Conclusion

The point in the present matter is really that the applicant was not heard in full. What this means is that while the determination by the designated agent may not amount to a default judgment, still there was a violation of the audi rule .This should be put right. It is also correct, as noted earlier, that an appeal to this Court does not suspend the operation of a determination being appealed against. However, this should not be viewed in isolation. There is need to avoid the violation of principles of fairness, see Sable Chemical Industries Limited v David Peter Easterbrook SC 18/2010.

In view of the foregoing, I find that there is merit in the application. Accordingly, it is ordered that

The Determination by Designated Agent dated 6 March 2023 be and is hereby set aside.

There is no order as to costs.

GILL, GODLONTON & GERRANS, APPLICANT’S LEGAL PRACTITIONERS